Footnotes

Executive Summary

[1]        See Migration Act 1958 - Determination of Granting of Protection Class XA Visas in 2013/2014 Financial Year - IMMI 14/026, pp 49-52.

[2]        See Marine Order 503 (Certificates of survey — national law) Amendment 2014 (No. 1),
pp 47-48.

[3]        See Australian Jobs (Australian Industry Participation) Rule 2014, pp 71-74,  Higher Education (Maximum Amounts for Other  Grants) Determination 2013, pp 75-80, Social Security Legislation Amendment (Green Army Programme) Bill 2014, pp 81-86, and Tertiary Education Quality and Standards Agency Amendment Bill 2014, pp 87-90.

Bills requiring further information to determine human rights compatibility - Australian Charities and Not-for-profits Commission (Repeal) (No. 1) Bill 2014

[1]        Explanatory memorandum, p 1.

[2]        Explanatory memorandum, p 1.

[3]        Statement of compatibility, p 1.

Independent National Security Legislation Monitor Repeal Bill 2014

[1]        See the definition of ‘counter-terrorism and national security legislation’ in section 4 of the Independent National Security Legislation Monitor Act 2010 (INSLM Act).

[2]        The institution was modelled on the United Kingdom’s Office of the Independent Reviewer of Terrorism Laws, which has a history dating back to the 1970s and was placed on a statutory basis in 2005: David Anderson QC, The Terrorism Acts in 2012, Report of the Independent Reviewer on the Operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006 (July 2013).

[3]        INSLM Act, section 3(c) and section 8.

[4]        Explanatory Memorandum to the 2010 bill, p 6.

[5]        INSLM Act, section 6(1)(b).

[6]        The UN Human Rights Committee has previously raised concerns about the compatibility of Australia’s counter-terrorism and national security legislation with the International Covenant on Civil and Political Rights (ICCPR), see ‘Concluding Observations of the Human Rights Committee: Australia’, CCPR/C/AUS/CO/5, 2 April 2009, para 11 and ‘List of issues prior to the submission of the sixth periodic report of Australia' (CCPR/C/AUS/6), adopted by the committee at its 106^th session (15 October-2 November 2012)’, CCPR/C/AUS/Q/6, 9 November 2012.

[7]        Article 9 of the ICCPR.

[8]        Article 14 of the ICCPR.

[9]        Article 17 of the ICCPR.

[10]      Article 12 of the ICCPR.

[11]      Article 19 of the ICCPR.

[12]      Article 22 of the ICCPR.

[13]      Articles 17 and 23 of the ICCPR; articles 3(1) and 37 of the Convention on the Rights of the Child.

[14]      Article 26 of the ICCPR.

[15]      Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Martin Scheinin, ‘Compilation of good practices on legal and institutional frameworks and measures that ensure respect for human rights by intelligence agencies while countering terrorism, including on their oversight’, A/HRC/14/46, 17 May 2010, pp 8-10.

[16]      Independent National Security Legislation Monitor Annual Report (16 December 2011):
A consolidated list of issues for consideration is set out in Appendix 3.

[17]      Independent National Security Legislation Monitor Annual Report (16 December 2011),
pp 18-24.

[18]      Independent National Security Legislation Monitor Annual Report (20 December 2012), p 1.

[19]      Independent National Security Legislation Monitor Annual Report (20 December 2012), see a consolidated list of recommendations in Appendix A.

[20]      The committee has raised concerns about the human rights implications of powers under the Charter of the United Nations Act 1945 and the Autonomous Sanctions Act 2011: see PJCHR, Seventh Report of 2013, June 2013, pp 47-49 and Tenth Report of 2013, June 2013, pp 13-16.

[21]      Independent National Security Legislation Monitor Annual Report (7 November 2013), see consolidated list of recommendations at Appendix A.

Omnibus Repeal Day (Autumn 2014) Bill 2014

[1]        Explanatory memorandum, p 1.

[2]        Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[3]        Article 11 of the ICESCR.

[4]        Articles 11 and 12 of the ICESCR.

[5]        Statement of compatibility, p 2.

[6]        Statement of compatibility, p 2.

[7]        Statement of compatibility, p 2.

[8]        Statement of compatibility, p 3.

Paid Parental Leave Amendment Bill 2014

[1]        Statement of compatibility, p 1.

[2]        Department of Human Services website, ‘Eligibility for Parental Leave Pay’ (as at 24 March 2014).

[3]        Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). See also articles 5 and 11 of the Convention on the Elimination of All Forms of Discrimination against Women.

[4]        Department of Human Services website, ‘Eligibility for Parental Leave Pay’ (as at 24 March 2014).

[5]        The UN Committee on Economic, Social and Cultural Rights has commented that article 7 of the ICECSR requires States parties to take steps to ‘reduce the constraints faced by men and women in reconciling professional and family responsibilities by promoting adequate policies for childcare and care of dependent family members.’ General comment No 16 (2005) (The equal right of men and women to the enjoyment of all economic, social and cultural rights (art. 3 of the International Covenant on Economic, Social and Cultural Rights)), para 24.

[6]        Article 10 of the ICESCR; and articles 23 and 24 of the International Covenant on Civil and Political Rights.

[7]        Article 8 of the Convention on the Rights of the Child.

[8]        See PJCHR, Practice Note 1. See also, PJCHR, Annual Report 2012-2013 ('The committee's analytical framework'), pp 14-15.

[9]        Direct discrimination occurs where a person is subject to less favourable treatment than others in a similar situation because of a particular characteristic.

[10]      Indirect discrimination occurs where apparently neutral criteria are applied to make decisions but which have a disproportionate impact on persons who share a particular characteristic.

[11]      See Committee on Economic, Social and Cultural Rights General Comment No. 19 (2008), para 29.

[12]      International Covenant on Civil and Political Rights, International Convention on the Elimination of all Forms of Racial Discrimination, Convention on the Rights of the Child, Convention on the Elimination of all forms of Racial Discrimination Against Women, Convention on the Rights of Persons with Disabilities.

Regulatory Powers (Standard Provisions) Bill 2014

[1]        Explanatory Memorandum, p 2.

[2]        Parliamentary Joint Committee on Human Rights, Sixth Report of 2012, pp 22-24.

[3]        Parliamentary Joint Committee on Human Rights, Tenth Report of 2013, pp 97-98.

[4]        See, for example, Parliamentary Joint Committee on Human Rights, First Report of 2013, paras 1.201-1.215 and Fifth Report of 2013, p 57 (comments on the Offshore Petroleum and Greenhouse Gas Storage Amendment (Compliance Measures) Bill 2012).

[5]        Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

[6]        Article 14 of the ICCPR.

[7]        Parliamentary Joint Committee on Human Rights, Fourth Report of the 44^th Parliament, p 6, para 1.18.

[8]        See, for example, proposed new section 98 of the bill. The committee notes this change was recommended by the Senate Legal and Constitutional Affairs Legislation Committee in its examination of the 2012 bill: Regulatory Powers (Standard Provisions) Bill 2012 [Provisions], March 2013.

[9]        Explanatory memorandum, p 2.

[10]      Article 14(3) of the ICCPR.

[1]        See Department of Employment website, 'Safety, Rehabilitation and Compensation Act Review', https://employment.gov.au/safety-rehabilitation-and-compensation-act-review-0, accessed 21 March 2014.

[2]        Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[3]        Article 6 of the ICESCR, articles 26 and 27 of the Convention on the Rights of Persons with Disabilities.

[4]        Article 7 of the ICESCR.

[5]        Article 17 of the International Covenant on Civil and Political Rights.

[6]        Committee on Economic, Social and Cultural Rights, General Comment 19: The Right to Social Security (art. 9), U.N. Doc E/C.12/GC/19 (2008), [17].

[7]        Article 4 of the ICESCR.

[8]        See Parliamentary Joint Committee on Human Rights (PJCHR), Practice Note 1. See also PJCHR, Annual Report 2012-2013 ('The committee's analytical framework'), pp 14-15.

[9]        Statement of compatibility, p ii.

[10]      Statement of compatibility, p iii.

Bills unlikely to raise human rights concerns - Amending Acts 1901 to 1969 Repeal Bill 2014

[1]        Explanatory memorandum, p. 2.

[2]        Statement of compatibility, p. 1.

[3]        Australian Law Reform Commission, Final Report, Classification – Content Regulation and Convergent Media (ALRC Report 118), tabled 1 March 2012.

[4]        Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and article 13 of the Convention on the Rights of the Child (CRC).

[5]        Article 3 of the CRC.

[6]        Article 17 of the CRC.

[7]        Article 18(2) of the CRC.

[8]        Article 34(c) of the CRC.

[9]        Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[10]      Article 15 of the ICESCR and article 27 of the ICCPR.

[11]      Statement of compatibility, p 1.

[12]      Parliamentary Joint Committee on Human Rights, First Report of the 44^th Parliament, 10 December 2013, p 11.

[13]      Article 26 of the International Covenant on Civil and Political Rights.

[14]      Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[15]      Article 11 of the ICESCR.

[16]      Article 7 of the ICESCR.

[17]      Statement of compatibility, p 4.

[18]      Explanatory memorandum, p 2.

[19]      Explanatory memorandum, p 2.

[20]      Statement of compatibility, p 6.

[21]      Statement of compatibility, p 6.

[22]      The bill was introduced as the Environment Protection and Biodiversity Conservation Amendment (Declared Fishing Activities) Bill 2012. Following an amendment to the title and other substantive amendments to the bill, a revised explanatory memorandum was provided, along with a number of supplementary explanatory memoranda. The statement of compatibility contained in the explanatory memorandum to the bill and that contained in the revised explanatory memorandum, are identical.

[23]      Parliamentary Joint Committee on Human Rights (PJCHR), Third Report of 2012, 19 September 2012.

[24]      PJCHR, Third Report of 2012, 19 September 2012, p 10, para 1.31.

[25]      PJCHR, Third Report of 2012, 19 September 2012, p 11, para 1.38.

[26]      PJCHR, Third Report of 2012, 19 September 2012, pp 1-12, paras 1.39-1.40.

[27]      PJCHR, First Report of 2013, 6 February 2013, pp 136-137.

[28]      PJCHR, First Report of 2013, 6 February 2013, p 135.

[29]      PJCHR, Fourth Report of the 44^th Parliament, March 2014, p 6, para 1.18.

[30]      Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[31]      Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

[32]      Parliamentary Joint Committee on Human Rights (PJCHR), Eight Report of 2013, 19 June 2013, pp 7-8. See also, PJCHR, Tenth Report of 2013, 27 June 2013, pp 123-125.

[33]      PJCHR, Fourth Report of the 44th Parliament, March 2014, p 6, para 1.18.

[34]      Article 6 of the ICESCR.

[35]      Article 26 of the ICCPR.

[36]      Article 14(1) of the ICCPR.

[37]      Article 18 of the International Covenant on Civil and Political Rights (ICCPR).

[38]      Article 26 of the ICCPR.

[39]      Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[40]      Parliamentary Joint Committee on Human Rights, Sixth Report of 2013, 15 May 2013, pp 115-116.

[41]      Explanatory memorandum, p 2.

[42]      Statement of compatibility, p 4.

[43]      Statement of compatibility, p. 1.

[44]      Explanatory memorandum, p 1.

[45]      Explanatory memorandum, p 1. See ARLC, Report 108, For Your Information: Australian Privacy Law and Practice, 12 August 2008, Recommendation 51-1, p 61.

[46]      Explanatory memorandum, p 1.

[47]      Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

[48]      Article 14 of the ICCPR.

[49]      Proposed new subsection 13(4A), Item 3 of Schedule 1.

[50]      Explanatory memorandum, p 2.

[51]      Statement of compatibility, p 3.

The committee has deferred its consideration of the following bills

[1]        Explanatory memorandum, p 1.

[2]        Statement of compatibility, p 6.

[3]        Explanatory memorandum, p 1.

[4]        Senate Standing Committee for Selection of Bills, Report No. 3 of 2014, 20 March 2014.

[5]        Explanatory memorandum, p 3.

[6]        Explanatory memorandum, p 4.

[7]        Senate Standing Committee for Selection of Bills, Report No. 3 of 2014, 20 March 2014.

[8]        Parliamentary Joint Committee on Human Rights, Third Report of the 44^th Parliament, p 39.

[9]        Senate Standing Committee for Selection of Bills, Report No. 2 of 2014, 6 March 2014

[10]      Explanatory memorandum, p 2.

[11]      Explanatory memorandum, p 4.

The committee has sought further comment in relation to the following instruments - Migration Act 1958 - Determination of Granting of Protection Class XA Visas in 2013/2014 Financial Year - IMMI 14/026

[1]        Section 85 of the Migration Act 1958 provides that the Minister may determine by instrument in writing the maximum number of the visas of a specified class that may be granted in a specified financial year.

[2]        Explanatory statement, p 1.

[3]        Section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 requires statements of compatibility only for legislative instruments within the meaning of section 42 of the Legislative Instruments Act 2003. The committee's scrutiny mandate, however, is not limited by the section 42 definition and extends to all legislative instruments: see section 7(a) of the Human Rights (Parliamentary Scrutiny) Act 2011.

[4]        Parliamentary Joint Committee on Human Rights (PJCHR), Second Report of the 44th Parliament, 11 February 2014, pp 101-102.

[5]        See, PJCHR, Second Report of the 44th Parliament, 11 February 2014, p 101, para 2.32. See also, PJCHR, Fourth Report of the 44th Parliament, 18 March 2014, pp 83-84, paras 3.107-3.109.

[6]        Mr Martin Bowles PSM, Secretary, Department of Immigration and Border Protection, Supplementary Budget Estimates Hansard, 19 November 2013, p 37.

[7]        Article 9 of the International Covenant on Civil and Political Rights (ICCPR).

[8]        Article 10 of the ICCPR.

[9]        Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[10]      Articles 3(1), and 37(b) of the Convention on the Rights of the Child (CRC).

[11]      Article 6 of the ICESCR.

[12]      Article 9 of the ICESCR.

[13]      Article 11 of the ICESCR.

[14]      Articles 17 and 23 of the ICCPR; articles 3(1), 10, 20 and 22 of the CRC.

Marine Order 503 (Certificates of survey — national law) Amendment 2014 (No. 1)

[1]        See, Parliamentary Joint Committee on Human Rights (PJCHR), Third Report of 2013, 13 March 2013, pp 29-36; Sixth Report of 2013, 15 May 2013, pp 253-254; and Tenth Report of 2013, 26 June 2013, pp 125 and 173. The committee notes that both the Victorian Parliament’s Scrutiny of Acts and Regulations Committee and the ACT Legislative Assembly have raised concerns in relation to whether and how human rights compatibility is taken into account in the development of national cooperative legislative schemes. See, for example, Scrutiny of Acts and Regulations Committee (Victoria), comments on the Heavy Vehicle National Law Application Bill 2013 (Alert Digest No. 6 of 2013), at pp 16-17 [2013] VicSARCAD 9 (7 May 2013) and Practice Note 3 (2010); and ACT Standing Committee on Justice and Community Safety (performing the duties of a Scrutiny of Bills and Subordinate Legislation Committee), Comments on National Energy Retail Law (A.C.T.) Bill 2012 (ACT), Scrutiny Report 31 May 2012, Report 53, p 11.

Appendix 1: Full list of Legislative Instruments received by the committee between 1 and 7 March 2014

[1]        The committee has set out its expectations with regard to information that should be provided in statements of compatibility in its Practice Note 1, available at: www.aph.gov.au/joint_humanrights.

[2]        FRLI is found online at www.comlaw.gov.au.